Citation Nr: 0947958
Decision Date: 12/18/09 Archive Date: 12/31/09
DOCKET NO. 07-35 190 ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Denver, Colorado
THE ISSUES
1. Whether new and material evidence to reopen a claim for
service connection for bilateral hearing loss has been
received.
2. Entitlement to service connection for bilateral hearing
loss.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
S. Layton, Associate Counsel
INTRODUCTION
The Veteran served on active duty from April 1976 to
September 1982, and from December 1982 to October 1998.
A claim for service connection for bilateral hearing loss was
previously denied by the RO in March 1999; the Veteran did
not appeal that decision..
This appeal to the Board of Veterans' Appeals (Board) arises
from a December 2006 rating decision in which the RO, inter
alia, denied the petition to reopen a claim for service
connection for bilateral hearing loss. In April 2007, the
Veteran filed a notice of disagreement (NOD). A statement of
the case (SOC) was issued in October 2007, and the Veteran
filed a substantive appeal (via a VA Form 9, Appeal to the
Board of Veterans' Appeals) in November 2007.
In August 2009, the Veteran testified during a hearing before
the undersigned Veterans Law Judge at the RO; a transcript of
that hearing is of record. During the hearing, the Veteran's
representative submitted additional medical evidence directly
to the Board, with a waiver of initial RO consideration of
the evidence. This evidence is accepted for inclusion in the
record on appeal. See 38 C.F.R. §§ 20.800, 20.1304 (2009).
Regardless of the RO's actions, the Board has a legal duty
under 38 U.S.C.A. §§ 5108, 7104 (West 2002) to address the
question of whether new and material evidence has been
received to reopen the claim for service connection. That
matter goes to the Board's jurisdiction to reach the
underlying claim and adjudicate the claim on a de novo basis.
See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996).
As the Board must first decide whether new and material
evidence to reopen the claim has been received-and, in view
of the Board's favorable decision on the request to reopen-
the Board has characterized this appeal as encompassing the
matters set forth on the title page.
In so doing, the Board has considered the recent decision of
the United States Court of Appeals for the Federal Circuit
(Federal Circuit) in Boggs v. Peake, 520 F.3d 1330 (Fed. Cir.
2008). In that decision, the Federal Circuit held that a
claim for one diagnosed disease or injury cannot be
prejudiced by a prior claim for a different diagnosed disease
or injury. Rather, the two claims must be considered
independently. See Ephraim v. Brown, 82 F.3d 399 (Fed. Cir.
1996). In this case, as will be discussed below, the Veteran
was previously denied service connection for bilateral
hearing loss on the basis that although competent evidence
demonstrated that the Veteran had hearing loss, the extent of
hearing loss demonstrated did not rise to the level required
by 38 C.F.R. § 3.385 for recognition as a disability for VA
purposes. As there was a diagnosis of hearing loss at the
time of the previous final decision, the diagnoses of hearing
loss since that denial cannot constitute a different
diagnosed disease or injury.
FINDINGS OF FACT
1. All notification and development actions needed to fairly
adjudicate each matter on appeal have been accomplished.
2. In a March 1999 rating decision, the RO denied service
connection for bilateral hearing loss; although notified of
the denial in an April 1999 letter, the Veteran did not
initiate an appeal.
3. Evidence associated with the claims file since the
March 1999 denial is not cumulative and redundant of evidence
of record at the time of the prior denial, relates to an
unestablished fact necessary to substantiate the claim, and
raises a reasonable possibility of substantiating the claim
for service connection for bilateral hearing loss.
4. Although no specific incident of acoustic trauma is
reflected in the Veteran's service treatment records, the
Veteran has asserted in-service noise exposure, including jet
engines.
5. The Veteran currently has bilateral hearing loss to an
extent recognized as a disability for VA purposes, and in the
only competent opinion on the question of whether there
exists, medical relationship between the Veteran's current
bilateral hearing loss and in-service noise exposure, a VA
treatment provider opined that there was certainly a
connection.
CONCLUSIONS OF LAW
1. As evidence pertinent to the claim for service connection
for bilateral hearing loss, received since the RO's
March 1999 denial, is new and material, the criteria for
reopening the claim for service connection for bilateral
hearing loss are met. 38 U.S.C.A. §§ 5108, 7105 (West 2002);
38 C.F.R. § 3.156 (2009).
2. Resolving all reasonable doubt in the Veteran's favor,
the criteria for service connection for bilateral hearing
loss are met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107(b)
(West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303,
3.385
(2009).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Duties to Notify and Assist
The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L.
No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at
38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126
(West 2002 & Supp. 2009)) includes enhanced duties to notify
and assist claimants for VA benefits. VA regulations
implementing the VCAA were codified as amended at 38 C.F.R.
§§ 3.102, 3.156(a), 3.159, and 3.326(a) (2009).
Given the Board's favorable disposition of the claim to
reopen, as well the claim for service connection for
bilateral hearing loss, on the merits, the Board finds that
all notification and development actions needed to fairly
adjudicate the claim have been accomplished.
II. Analysis
Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated by service.
38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection
may be granted for any disease diagnosed after discharge from
service when all the evidence, including that pertinent to
service, establishes that the disease was incurred in
service. 38 C.F.R. § 3.303(d).
A. New and Material Evidence
As indicated above, the RO denied the Veteran's claim for
service connection for bilateral hearing loss in March 1999.
The evidence of record at the time consisted, primarily, of
the Veteran's service treatment records, which contained
numerous audiograms. The service personnel records showed
that the Veteran's Military Occupational Specialty was
Aircrew Life Support Craftsman. A June 1979 audiogram showed
that the Veteran had been assigned to duty in noise since
August 1976. Audiograms from April 1980,January 1981, and
March 1982 revealed that the Veteran was exposed to noise
both on the flight line and by working in shops. July 1987
and December 1993 service records showed that the Veteran was
involved in a hearing conservation program. The October 1998
service retirement examination report had a notation that the
Veteran suffered from hearing damage secondary to chronic
noise exposure.
On VA audiological testing in February 1999, pure tone
thresholds, in decibels, were as follows:
HERTZ
1000
2000
3000
4000
RIGHT
15
20
10
15
LEFT
15
20
15
15
Pure tone threshold averages were 15 decibels (dB) in the
right ear and 16 dB in the left ear. Speech discrimination
scores were 100 percent bilaterally.
Specific to claims for service connection, impaired hearing
is considered a disability for VA purposes when the auditory
threshold in any of the frequencies of 500, 1,000, 2,000,
3,000, or 4,000 Hertz is 40 decibels or greater; the
thresholds for at least three of these frequencies are 26 or
greater; or when speech recognition scores using the Maryland
CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2009).
The basis for the RO's March 1999 denial was that the
evidence did not show that the Veteran had hearing loss to an
extent recognized as a disability for VA purposes according
to the criteria in 38 C.F.R. § 3.385.
Although notified of the denial in an April 1999 letter, the
Veteran did not initiate an appeal.. See 38 C.F.R.
§ 20.200.. The RO's March 1999 decision is therefore final
as to the evidence then of record, and is not subject to
revision on the same factual basis. See 38 U.S.C.A. § 7105;
38 C.F.R. §§ 3.104, 20.302, 20.1103.
Under pertinent legal authority, VA may reopen and review a
claim that has been previously denied if new and material
evidence is submitted by or on behalf of the veteran. 38
U.S.C.A. § 5108; 38 C.F.R. § 3.156(a). See also Hodge v.
West, 155 F.3d 1356 (Fed. Cir. 1998).
The Veteran sought to reopen his previously denied claim in
February 2006. Regarding petitions to reopen filed on or
after August 29, 2001, 38 C.F.R. § 3.156(a) defines "new"
evidence as evidence not previously submitted to agency
decisionmakers and "material" evidence as evidence that, by
itself or when considered with previous evidence of record,
relates to an unestablished fact necessary to substantiate
the claim. New and material evidence can be neither
cumulative nor redundant of the evidence of record at the
time of the last final denial of the claim sought to be
reopened, and must raise a reasonable possibility of
substantiating the claim. 38 C.F.R. § 3.156(a).
In determining whether new and material evidence has been
received, VA must initially decide whether evidence received
since the prior final denial is, in fact, new. As indicated
by the regulation cited above, and by judicial case law,
"new" evidence is that which was not of record at the time
of the last final disallowance (on any basis) of the claim,
and is not duplicative or "merely cumulative" of other
evidence then of record. This analysis is undertaken by
comparing the newly received evidence with the evidence
previously of record. After evidence is determined to be
new, the next question is whether it is material.
The provisions of 38 U.S.C.A. § 5108 require a review of all
evidence submitted by or on behalf of a claimant since the
last final denial on any basis to determine whether a claim
must be reopened. See Evans v. Brown, 9 Vet. App. 273, 282-3
(1996). Here, the last final denial of the claim is the RO's
March 1999 rating decision. Furthermore, for purposes of the
"new and material" analysis, the credibility of the
evidence is presumed. Justus v. Principi, 3 Vet. App. 510,
512-513 (1992).
Pertinent evidence associated with the claims file since the
RO's March 1999 denial consists of VA treatment records and
the transcript from the Veteran's August 2009 Board hearing.
In particular, VA audiological testing conducted in
August 2005 revealed pure tone thresholds, in decibels, as
follows:
HERTZ
1000
2000
3000
4000
RIGHT
35
30
40
45
LEFT
30
35
45
45
Speech discrimination scores were 96 percent bilaterally.
Additionally, in a July 2009 statement, the Veteran's VA
treatment provider commented that the Veteran's hearing loss
is certainly connected to his years working around jet
engines.
The Board finds that the above-described evidence is "new"
in that it was not before agency decisionmakers at the time
of the March 2009 final denial of the claim for service
connection for bilateral hearing loss, and is not duplicative
or cumulative of evidence previously of record. Moreover,
this evidence is "material" in that it addresses whether
the Veteran currently has hearing loss that may be medically
related to service. Hence, this evidence relates to
unestablished facts necessary to substantiate the claim for
service connection for bilateral hearing loss, and raises a
reasonable possibility of substantiating the claim.
Under these circumstances, the Board concludes that the
criteria for reopening the claim for service connection for
bilateral hearing loss are met. See 38 U.S.C.A. § 5108; 38
C.F.R. § 3.156.
B. Service Connection
The Veteran asserts that his exposure to loud noise while in
service has caused the claimed bilateral hearing loss.
Specifically, he contends that he was exposed to noise from
jet engines while working on the flight line. He states that
his hearing has been bad since before his discharge.
As indicated above, the Veteran's service personnel records
reflect that the Veteran's Military Occupational Specialty
was Aircrew Life Support Craftsman. Numerous service
audiograms are of record, some of which indicate that the
Veteran was exposed to noise while working on the flight line
and in various shops.
A October 1998 service retirement examination report includes
a notation that the Veteran suffered from hearing damage
secondary to chronic noise exposure. However, on
audiological testing in October 1998, pure tone thresholds,
in decibels, were as follows:
HERTZ
1000
2000
3000
4000
RIGHT
5
15
5
5
LEFT
15
10
15
15
According to the criteria of 38 C.F.R. § 3.385 as recounted
above, the audiogram taken at the Veteran's retirement from
active service does not show that he had a hearing loss
disability for VA purposes.
However, that the absence of in-service evidence of hearing
loss is not fatal to the claim,. See Ledford v. Derwinski, 3
Vet. App. 87, 89 (1992). Evidence of a current hearing loss
disability (i.e., one meeting the requirements of section
3.385, as noted above) and a medically sound basis for
attributing such disability to service may serve as a basis
for a grant of service connection for hearing loss. See
Hensley v. Brown, 5 Vet. App. 155, 159 (1993).
As noted above, post service and pertinent to this claim, the
Veteran underwent VA audiological testing in August 2005.
Testing results revealed moderate sensorineural hearing loss
bilaterally. In each ear, the auditory threshold at
multiple, relevant frequencies was 40 decibels or greater.
These results establish bilateral hearing loss disability as
defined in 38 C.F.R. § 3.385. The question remains, however,
as to whether there exists a medical nexus between such
hearing loss disability and service.
While the Veteran's service treatment records do not document
the occurrence of, or treatment for, any specific incidence
of acoustic trauma, the Veteran is competent to assert the
occurrence of in-service injury, to include in-service noise
exposure. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1991).
Moreover, the Board notes that the Veteran's job on active
duty involved working on a flight line. Given the
circumstances of the Veteran's service, the Board finds that
he was likely exposed to some, and possibly significant,
noise exposure in service from exposure to jet engines.
Thus, although there is no objective evidence to support a
specific incident of acoustic trauma in service, the Board
accepts the Veteran's assertions of in-service noise exposure
as credible and consistent with the circumstances of his
service. See 38 U.S.C.A. § 1154.
Further, the only competent opinion addressing the medical
nexus question-a July 2009 statement by the Veteran's VA
treatment provider-tends to support the claim. It was noted
that the Veteran had worked around jets and loud noise for 20
years while serving in the Air Force, and the Veteran was
currently experiencing decreased hearing as a probable result
from being around loud noise for so long. It was further
noted that the Veteran had had his hearing checked at that
clinic and had been found to be deficient in both ears. The
examiner opined that the Veteran's hearing loss was certainly
connected to his years working around jet engines.
While, in merely referencing only a "connection", the
examiner did not clearly or definitively attribute the
Veteran's current bilateral hearing loss solely to service,
her comments, as a whole tends to suggest as much; moreover,
no other noise exposure was addressed. The Board also finds
it significant to note that, as the only competent opinion to
address the etiology of the Veteran's current bilateral
hearing loss, this opinion is not directly contradicted by
any other competent evidence or opinion of record. While the
examiner's opinion may have been based entirely or in part on
a history provided by the Veteran, such reliance only
warrants the discounting of a opinion in certain
circumstances, such as when the opinion is contradicted by
other evidence in the record or when the Board rejects the
statements of the Veteran. See Coburn v. Nicholson, 19 Vet.
App. 427, 432-33 (2006); Kowalski v. Nicholson, 19 Vet. App.
171, 179 (2005). As noted above, the Veteran is competent to
report a history of in-service injury-here, noise exposure-
and the Board has accepted that history as credible and
consistent with the circumstances . The Board also points
out that VA adjudicators are not permitted to substitute
their own judgment on a medical matter. See, e.g., Colvin v.
Derwinski, 1 Vet. App. 171, 173 (1991).
When, after careful consideration of all procurable and
assembled data, a reasonable doubt arises regarding service
origin, the degree of disability, or any other point, such
doubt will be resolved in favor of the claimant. See 38
U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski,
1 Vet. App. 49 (1990).
Given the facts noted above, and with resolution of all
reasonable doubt in the Veteran's favor, the Board concludes
that the criteria for service connection for bilateral
hearing loss are met.
ORDER
As new and material evidence to reopen the claim for service
connection for bilateral hearing loss has been received, to
this extent, the appeal is granted.
Service connection for bilateral hearing loss is granted.
____________________________________________
JACQUELINE E. MONROE
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs